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Protection from Employment Discrimination Jeopardized for Virginia’s LGBT Population

While two of its neighbors, Washington, D.C., and Maryland, recently have made progress in the effort to secure equal rights for lesbian, gay, bisexual, and transgender (LGBT) individuals, government officials in Virginia have gone the opposite direction. Virginia Governor Robert McDonnell (R) issued an executive order prohibiting employment discrimination in state agencies that excluded sexual orientation; Attorney General Ken Cuccinelli, II (R) issued an opinion that the state’s public colleges and universities did not have the legal authority to institute policies banning discrimination against employees and students on the basis of sexual orientation; and, efforts to include sexual orientation in the state’s anti-discrimination law have been quashed repeatedly by the House of Delegates.

On February 5, 2010, Governor McDonnell signed Executive Order 6, entitled “Equal Opportunity.” It mandates that state employees may not discriminate “on the basis of race, sex, color, national origin, religion, age, political affiliation, or against otherwise qualified persons with disabilities,” or veterans, in the workplace.[i] The executive order stripped LGBT individuals of the protection against discrimination they possessed during the administration of his predecessor, Timothy Kaine (D), which then-Attorney General McDonnell had questioned publicly. The exclusion of sexual orientation revived speculation that Governor McDonnell’s extremely conservative views on social matters, which he outlined in the thesis he wrote in 1989 while pursuing degrees in law and public policy at what is now named Regent University, would impact his policies.

At its inception, and during the Governor’s tenure as a student, the institution was named Christian Broadcasting Network (CBN) University. The university was created by CBN’s founder, televangelist Pat Robertson, whose numerous inflammatory public statements about LGBT individuals include blaming them for the devastation caused to New Orleans in 2005 by Hurricane Katrina.[ii] In his thesis, Governor McDonnell asserted that government should favor married couples over same-sex couples; attributed the decline of family values to many factors, including women working outside the home, abortion, and homosexuality; and asserted that one role of government is to preserve traditional, conservative values.[iii] During his campaign for Governor, McDonnell maintained that many of his views have changed over the course of twenty years and that he does not discriminate on the basis of sexual orientation; however, the fears his thesis inspired in many Virginians during his gubernatorial campaign seem to have been realized.

Virginia’s LGBT population suffered another setback on March 4, when Attorney General Cuccinelli issued a letter to the heads of the Virginia’s colleges and universities, which states that “the law and public policy of the Commonwealth of Virginia” prohibits their institutions from “including ‘sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification, as a protected class within its non-discrimination policy.”[iv] Attorney General Cuccinelli attributed his directive to ambiguous queries his office had received. Negative reactions to the letter were swift, and voiced by a broad range of people including professors, students, and public officials. Students, many of whom were away from campus for Spring Break, organized protests on the internet while those on campus held rallies and marched on the state Capitol= U.S. Senator Mark Warner (D-VA) stated that prohibiting discrimination on the basis of sexual orientation would “hurt the ability of our colleges and universities to attract the very best faculty, staff and students, and damage the Commonwealth’s reputation for academic excellence and diversity.”[v]

In addition to the negative public reaction, Attorney General Cuccinelli’s letter provoked the State Senate, in which Democrats are in the majority, to pass a bill that would add sexual orientation to Virginia’s anti-discrimination statutes. That bill, however, failed to advance out of committee in the Republican-controlled House of Delegates, and a subsequent procedural maneuver to bypass the committee process and bring the bill straight to the House floor also failed.[vi] The State Senate made another attempt to include the anti-discrimination language by attaching it to a bill with incentives designed to induce prominent defense manufacturer Northrup Grumman to keep its headquarters in Virginia; however, the Speaker of the House of Delegates would not allow the language to be added to the House version of the bill.[vii] The state legislature was primed for a battle in conference over the language; however, it was stripped from the Senate bill after it was judged to be superfluous given recent action by Governor McDonnell.

In an effort to quell the outrage that followed Attorney General Cuccinelli’s letter, Governor McDonnell issued an executive directive banning discrimination on the basis of sexual orientation. The State Senate deemed the language sufficient to make its measure unnecessary, disregarding the fact that executive directives, unlike executive orders, do not carry the force of law. Under this directive, the governor can terminate an employee who discriminates on the basis of sexual orientation; however, victims of discrimination have no legal recourse.

“The government of the Commonwealth of Virginia regards its LGBT population as second-class citizens. In addition to the lack of any statutory protection from discrimination in the workplace, public or private; LGBT individuals are denied other basic rights, such as any relationship recognition under the law,” said Jen Heitel Yakush, director of public policy at SIECUS. “In order for Virginia to provide its LGBT residents the employment rights they deserve, efforts to add sexual orientation to existing anti-discrimination laws must resume in the next legislative session. In addition, Governor McDonnell should substantiate his assertion that he is not biased by openly supporting those efforts and amend his executive order to reinstate the protection against employment discrimination that Virginia's LGBT population rightfully possessed during the previous administration.”

[iii] Robert McDonnell, “The Republican Party’s Vision for the Family: The Compelling Issue for the Decade,” thesis written at Regent University, 1989, accessed 12 March 2010, <http://www.washingtonpost.com/wp-srv/politics/documents/McDonnell_thesis_082909.pdf>.

[iv] Letter from Virginia Attorney General Kenneth Cuccinelli, II, to the Presidents, Rectors and Visitors of Virginia’s Public Colleges and Universities, 4 March 2010, accessed 12 March 2010, <http://www.washingtonpost.com/wp-srv/metro/Cuccinelli.pdf>.